I am a professor at Santa Clara University School of Law, where I teach and write about Internet Law, Intellectual Property and Advertising Law. Before I became a full-time professor in 2002, I practiced technology law in the Silicon Valley from 1994-2002. I've been blogging at the Technology & Marketing Law Blog since 2005 (http://blog.ericgoldman.org).

Top Ten Internet Law Developments of 2012

#10: The Push Towards Anti-Class Action Arbitration Clauses. In 2011, the U.S. Supreme Court ruled in AT&T Mobility v. Concepcion that businesses may be able to adopt mandatory arbitration clauses that ban customer class-action lawsuits. The ruling was hardly crystal-clear, but in its wake, many websites adopted such clauses. Nevertheless, as the Zappos decision points out, these clauses must be adopted according to the laws governing contract formation and amendment, or they will fail in court.

#9: General Patraeus/Paula Broadwell Imbroglio. On the surface, it’s just your typical Washington DC sex scandal. However, it had several interesting cyberlaw angles, including the attempts to hide digital conversations and Ms. Broadwell’s alleged cyberharassment of Jill Kelley. My biggest takeaway: If the CIA Director can’t keep the FBI from reading his email, what chance do you or I have?

#8: Do-Not-Track Meltdown. Everyone hoped that industry would come up with a do-not-track (DNT) standard rather than kicking the issue to Congress or the FTC. Then, it all went to heck. Microsoft announced it would turn on DNT by default in its browser, which prompted Internet publishers to threaten to ignore Microsoft’s DNT signal. Meanwhile, Internet publishers and others adopted a narrow definition of “do-not-track,” arguing it meant no-tracking for advertising purposes, but tracking for other purposes was still OK. The effort then devolved into acrimonious recriminations and left open the possibility that government regulators will fill the gap–to everyone’s detriment. (For what it’s worth, I take a very dim view of technological do-not-track efforts for reasons I explain here).

#7: Social Media Exceptionalism. In 2012, regulators eagerly sought to “fix” social media through regulation, but their efforts will fail because no one can precisely define social media as a subset of Internet activity. For example, California’s recent attempt to curb employers’ attempts to obtain employees’ social media passwords led to the astounding definition that “social media” means all digital data, whether online or off.

#6: Megaupload. The US government proudly touted its takedown of Megaupload as a victory for Internet copyright enforcement. Unfortunately, it appears that takedown involved an enforcement action where it appears the US government repeatedly ignored or broke the law.

#5: Software Patents/Smartphone Wars. The smartphone industry has ushered in a glorious era of innovation, but it’s also highlighted how patents can hinder, not spur, innovation. Smartphone players have spent (wasted?) billions of dollars on patents with the hope that they can operate without restriction from other players’ patents, and many tens of millions of dollars have been spent (wasted?) on legal fees as the players sue each other for patent infringement and defend against interlopers with weak/bogus patents hoping for a little taste of the action. See my three part series on software patents:

#4: Europe Hates Silicon Valley. I’m surprised whenever I read about a new European ruling that’s adverse to a Silicon Valley company, because at this point I assume that everything Silicon Valley companies do in Europe is already illegal. Google, Facebook and other Silicon Valley players are under constant legal attack in Europe on countless fronts. Everyone might be happier if the Silicon Valley players just got out of Europe altogether.

#3: Google and Antitrust. The FTC largely dropped its antitrust investigation against Google, and dropped it completely with respect to Google’s search engine practices. (Technically the denouement rolled out on January 3, 2013, but I’m still counting it as a 2012 development). This is an important development for several reasons. First, the FTC–which makes its living by bringing enforcement actions–admitted it had no reason to complain about Google’s search engine practices. Second, the scuttlebutt all throughout the investigated suggested that the FTC was committed to busting Google, and Google turned that situation around 180 degrees. Third, not intervening into the operation of Google’s search algorithm is a logical decision, but one still worth celebrating. This was a great resolution for Google, a complete rejection of the concerns raised by Microsoft and other Google-haters, and due to the FTC’s non-involvement, ultimately a big win for Google’s users.

#2: ITU/WCIT’s Attempted Internet Takeover. I really didn’t understand what happened in Dubai at the ITU/WCIT meeting. All I know is that nothing good could have happened there, so preserving the status quo is a win, as ironic as that sounds.

However, there has been some teeth-gnashing that the meeting exposed looming fault lines between pro-censorship and anti-censorship governments. I don’t understand that angst for at least two reasons. First, all governments are pro-censorship, and that certainly includes the United States. Indeed, the US has exhibited some awkward duality as it rails against foreign attempts to censor the Internet even as both Congress and the Obama Administration exhibit a never-ending pursuit of controlling the Internet themselves.

Second, the Internet has already fractured into multiple “Internets.” The Internet in the United States increasingly bears little resemblance to the Internet in foreign countries, both because local regulators simply block certain websites and because websites localize their services to accommodate local regulation. Plus, it’s been proven that countries can simply “unplug” from the Internet. Thus, we don’t have a single unified Internet; we have many partially-overlapping Internets. I will say more about this in a future post.

#1: SOPA’s Failure. The failure of SOPA/PIPA is not the watershed event for our republican democracy that we wished it would be. Citizen-driven rejection of special-interest Internet legislation will not happen very often. But as a David-and-Goliath story–the uncoordinated and oft-ignored Internet user community rising up against a well-oiled and undefeated copyright lobby–it doesn’t get any bigger than SOPA. Also, we learned something really important: American voters will acquiesce to a lot of bad and self-interested decisions by their elected officials, but voters will grab the torches and pitchforks if they think the Internet is threatened.

Post Your Comment

Post Your Reply

Forbes writers have the ability to call out member comments they find particularly interesting. Called-out comments are highlighted across the Forbes network. You'll be notified if your comment is called out.

Europe doesn’t hate the Silicon Valley. Actually, Europe quite looks up to it as it’s a place where innovation can really happen on its own. However, once US-based companies start doing business in Europe, it’s just fair that they pay the same taxes as everyone else. Whether they want to or not, they’re currently killing European innovation, which is part of the reason Europe is in such an economic mess right now. Yes, Europe protects its local businesses just like the rest of the world does – the only difference is that Europe feels guilty about admitting it, which means the issue never gets addressed properly.

SOPA was a terrible idea to start with, and Internet users worldwide have taken this cause at heart because they somehow feel it’s the last place they can really hope for freedom. It may be a utopia and it sure doesn’t exist online (what with the grammar nazis and the total lack of freedom of thought online) but they feel that it’s the only medium through which they can express themselves without being thwarted. The pro-SOPA and pro-ACTA arguments meant that the Internet could become like the rest of the world: controlled by a few powerful people who have no clue and don’t care about what the rest of the world wants. The fact that so many people agreed this was an enormous issue proves that there still is a will to take part in what’s happening globally, even though that may hide very selfish motives. Thanks for the article, it’s quite interesting to see the Western world is not so different from China once you look at the way law restricts freedom of speech and thought!

My ‘final paper’ at law school I’ll write ’bout the “Internet’s acceptance by society and it’s juridical recognition by eletronic ways (a.k.a. e-procs)” and I’m looking for works/papers/books that teach and instruct that content.

Unfurtunately (or not) Brazilian’s didn’t write about that matter and I’ll be glad if you could help me with some guidelines.